Trump, Cruz, and Freedom of Speech

trump-stopOn the evening of March 11, Donald Trump had planned to hold a rally at the UIC Pavilion arena, owned by the University of Illinois at Chicago and rented to Trump for the purpose. Instead, Trump and his campaign team cancelled the rally “after chaos and clashes between protesters and attendees overtook the event.”

This episode puts me in the position of disapproving of what Trump says—indeed, I loathe the man and nearly everything he says—while defending his right to speak (a la Voltaire). The silver lining is that, once again, we as Americans have an opportunity to reflect on the meaning of freedom of speech and on its central importance to civic life and to liberty.

Let’s begin with the basics. If someone wishes to hold a rally, he has a moral right to do so—on private property. (By contrast, you don’t have a right to hold a rally in my back yard without my permission.) And he has a right to set the terms of behavior at the rally, on pain of ejection. Trump has a right to hold a rally just as everyone else does—and anyone who employs violence to stop Trump from speaking thereby violates his rights and the rights of everyone coming to hear him.

In this case there are a few complications. First, the University of Illinois at Chicago (UIC, as distinguished from the University of Chicago) is a tax-subsidized institution. That means that everyone forced to pay taxes to support the institution is thereby forced to help finance the many instances of speech on that campus—a violation of the taxpayer’s right not to speak and not to support speech with which he disagrees.

However, the fact that government forces people to subsidize the university isn’t Trump’s fault. Given the widespread existence of “public” (i.e., tax-subsidized) property in America—including almost all colleges—we have to have some sensible rules governing the use of that property. We can’t just say, “No one really owns it, so therefore anything goes”; that would be total chaos. And Constitutional provisions delimit the use of tax-financed property. In this case, when the university rents Trump a facility for the evening, Trump has the right to use the facility for lawful purposes during that period.

Another complication is that Trump himself has plausibly been accused of inciting people to violence. He’s told his supporters he’d like to “knock the hell” out of protesters and punch a protester “in the face.” In fact, some of Trump’s supporters have assaulted protesters. (His campaign manager also allegedly roughed up a reporter.)

However, two crimes do not make a right. If Trump incites violence, the proper thing to do is call the police, not engage in more violence. Clearly these protesters’ goal, as they brag, was not to stop Trump from inciting violence; it was to “shut down” Trump’s rally.

A third complication is that rallies are in some sense public events, in that people broadly are invited to attend, and rallies are by their nature raucous. So we don’t expect people to be quiet at a rally as we would expect, say, at a classical piano concert. Unless a rally organizer explicitly and clearly announces beforehand that critical messages or remarks are forbidden, they’re clearly expected. Indeed, Trump thrives on protesters at his rallies; he is codependent on protesters. So there’s nothing wrong merely with protesting Trump at a Trump rally—just as there’s nothing wrong if Trump or his team asks protesters to leave. Protesters cross the line when they seek to substantially disrupt a rally, as they did in Chicago. Sometimes these lines can be blurry, but obviously rushing the stage and the like crosses them.

Cruz on Trump

Ted Cruz clearly placed blame for the cancelled rally with the protesters; he said “the responsibility for that lies with protesters who took violence into their own hands.”

He then went on to say—correctly—that Trump himself fosters a climate inimical to freedom of speech. Cruz said that Trump’s campaign “affirmatively encourages violence,” that it faces “allegations of physical violence against members of the press,” and therefore that it creates “an environment that only encourages this sort of nasty discourse.”

Ignoring the facts that Cruz blamed the protesters and that his remarks about Trump are correct, Ann Coulter called him a traitor. Obviously that’s ridiculous (but this is Ann Coulter we’re talking about). The fact that violent protesters violated the rights of Donald Trump and his supporters does not make Trump immune from criticism.

In fact, Ted Cruz is a great champion of freedom of speech; indeed, in my view, that is his greatest strength as a candidate and as a statesman.

Donald Trump: Enemy of Free Speech

Coulter’s claim about Cruz is especially ridiculous in light of the fact that Donald Trump himself is an enemy of the right to freedom of speech. As I’ve mentioned before, Trump threatened to sue media outlets for criticizing him. He also appeared to praised the Chinese government’s murderous crackdown at Tiananmen Square regarding the protest Trump called a “riot”; he has since softened his rhetoric.

To my mind, Trump’s biggest offense here is to blame the victims of Islamic terrorism for the violence with respect to a “Draw Mohammed” event. To review, last year Pamela Geller helped organize a “Draw Mohammed” event in Garland, Texas; two jihadis died in their assault of the event, thankfully with no other casualties. Bosch Fawstin won the contest with his cartoon showing Mohammed saying, “You can’t draw me!” and the illustrator responding, “That’s why I draw you.”

Far from rushing to defend freedom of speech here, Trump denounced Geller and the cartoonists, saying they were “taunting” the jihadists. As he rushed to blame the victims of the attack, Trump thereby echoed some of the sentiments of those who endorse violent jihad.

By Trump’s “logic,” Trump’s critics are justified in violently shutting down his rallies because he “taunts” them by saying things they find offensive. Obviously Trump’s stance here is dangerous nonsense. Trump fails to defend the right to freedom of speech and in some respects openly attacks it; that some of Trump’s supporters so boldly project Trump’s flaws onto other candidates is stunning.

Freedom of Speech and the First Amendment

The matter of Trump’s rally has led to some interesting discussion regarding the relationship of the right to freedom of speech and the First Amendment.

Constitutional scholar Timothy Sandefur Tweets what I take to be the correct view (edited for clarity): “The First Amendment only bars government censorship. If private citizens shout down a speaker, they’ve committed a tort, not an unconstitutional act.”

Conceptually, the right to freedom of speech is a claim against other people, including the people who constitute government. A person or organization (private or government) violates someone’s freedom of speech by using force to prevent the person from speaking (using his own property or in voluntary association with others). The First Amendment specifically bars  government from violating citizens’ right to freedom of speech. Other forms of violence that shuts down speech are still rights-violating; they just don’t fall under the First Amendment.

Congressman Justin Amash—for whom I have a lot of respect—I think gets the legal point right but not the conceptual point. He rightly holds that a private party who violently disrupts someone’s speech thereby commits a crime but not a First Amendment violation. But I think Amash is wrong to suggest that private parties cannot violate others’ right to freedom of speech.

Private parties cannot censor speech—censorship is a concept specific to government action—but certainly they can violate others’ rights to freedom of speech. So, for example, if Jim threatens to beat Alex for giving a stump speech (where allowed by right), then Jim clearly violates Alex’s right to freedom of speech; this just isn’t a First Amendment issue.

I think Amash and I essentially agree in substance; he just makes a slight error in terminology. But it is an issue we need to clear up. The individual’s right to freedom of speech posits a claim against all other people, in and out of government; the purpose of the Constitutional provision is specifically to check government.

Update: Amash further clarifies: “I think the disagreement stems from my distinguishing between the natural right of ‘speech’ and ‘freedom of speech,'” with the latter pertaining to the citizen’s relation to government. Although I think that’s unnecessarily complicated, I think it’s fine to go either way with the terminology, so long as we clarify our intended meaning explicitly or at least contextually.

Return to Free Speech

Donald Trump has a moral and legal right to speak, even if what he says often is despicable. His critics have a right to speak out against him and to protest him—but not to forcibly shut down his events.

Regardless of our particular views, rationally we must defend freedom of speech to preserve a culture in which we can present our views and appeal to the minds of other people.

Shamefully, many Americans have flocked to candidates who treat the right to freedom of speech with contempt. On the Republican side, Trump threatens to persecute his critics in the media and condemns those taking a stand against violent, speech-silencing jihadists. On the Democratic side, both leading candidates take as a central campaign theme the effort to allow government to substantially censor political speech.

To preserve our liberty, we must do more than support the ability of this or that candidate to speak out; we must support the right to freedom of speech across the board, especially for those with whom we vehemently disagree.

To lower the bar on freedom of speech is to court eventual dictatorship—and those who think that’s hyperbole are dangerously naive.

· Reflections on the Presidential Race after Super Tuesday
· Reason and Rights Republicans

Image: Max Goldberg

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